Sunday, August 26, 2012

During this crazy campaign season, we’re never very far from hearing the words “American Exceptionalism.” We – candidates and others – persist in using this meaningless and hackneyed phrase despite what most of us now know about all the times in history when our America was not-so-exceptional.

Not-So-Exceptional-At-All.

Let me illustrate my point with a letter. You need to read this letter. You really do. It was written this summer by a former resident of Death Row in a Louisiana state prison. His name is John Thompson. Here are the key parts of what he wrote:

I was sentenced to death in 1984 for a crime I didn’t commit. I spent 14 years on death row and another four in prison before I was exonerated and freed. I came weeks from execution for something I knew I didn’t do.

The prosecutors at my trials hid evidence of my innocence in both a robbery case and a murder case that got me convicted and sentenced to death.

While I was on death row, I met other condemned men (and teenagers) including Ryan Matthews, Shareef Cousin, Dan Bright, Curtis Kyles, Albert Burrell and Michael Graham. All six of them were exonerated and freed, not killed by lethal injection.

We were condemned for over 60 years between us. And we were from all over the state: four of us from New Orleans, one from Jefferson Parish and two from Union Parish. All of us had lawyers to represent us at our trials. But you can bet none of us had an “O.J.”

After we were condemned, all of us were “lucky”enough to get lawyers from groups with the money to properly investigate our cases. Because they had the money and time to properly investigate, each of us was exonerated and freed.

My lawyers were from a law firm in Philadelphia who dedicated 16 years of their lives to proving my innocence. If they hadn’t, I’d be dead. No doubt about it.

Of course, if Louisiana had paid for us to have real defenses in the first place, we wouldn’t have been wrongly condemned to die, our families wouldn’t have suffered years of trauma, the families of the victims wouldn’t have suffered as long, the state would have saved money and the real perpetrators might have been more quickly caught.

John Thompson is now the director of a prison rights organization called “Resurrection After Exoneration” in New Orleans.

My attention was drawn to the past paragraph in Thompson’s letter, where he says, “… if Louisiana had paid for us to have real defenses in the first place, we wouldn’t have been wrongly condemned to die….”

He is referring to the “loser pays” principle that’s in effect in many countries, including Germany and the United Kingdom. Lawyers are of divided opinions on the issue, which is incredibly complicated and littered with examples of unintended consequences.

The nation’s lawyers are nowhere near addressing, much less resolving, resolving this problem. And, while some states have already implemented some version of the rule, it applies only to civil, not criminal, cases.

Compensation for unlawful imprisonment obligates some states to compensate the exonoree , some not. Today, 22 states, the District of Columbia, and the Federal Government, will make a cash award to those freed after doing unlawful jail time; the rest have no such provision. In those, the outward-bound gift is something like $75.00 and a bus ticket. In other states, the award can be substantial – in the millions, depending on the length of incarceration.

And sometimes, that system itself goes wrong. One exonoree was awarded $14 million for spending a generation on death row. Within days, the state did a 180 and withdrew the award, giving the former prisoner nothing.

The quality of lawyering in defense cases often leaves just about everything to be desired. States are cutting back on funding for legal aid lawyers. Lawyers tell me, anecdotally, that public defenders seem to be getting both younger and older. Murder cases are being handled by lawyers who have never dealt with a capital crime before. Not infrequently, older lawyers have been known to sleep through substantial parts of trials, miss court dates, and fail to file documents – even last-minute motions -- on deadline.

Most of the court cases in the US take place in State (or lower) Courts, not in the Federal Justice System. That means that, as a country, we have a patchwork of different rules, regulations, procedures, and sentences.

While large law firms are keeping up the pace of their pro bono work, some are beginning to try to put distance between their firms and certain kinds of pro bono work – for example, defending Guantanamo Bay detainees before Military Commissions. Their reason is that the current Military Commission law represents a system that has never been tried and which has virtually no track record.

And then there was this from John Thompson’s letter: “The prosecutors at my trials hid evidence of my innocence.” For me, this is the most egregious part of Thompson’s letter.

Here’s what it means, according to USA TODAY:

The jurors who helped put Nino Lyons in jail for three years had every reason to think that he was a drug trafficker, and, until July, no reason to doubt that justice had been done. For more than a week in 2001, the jurors listened to one witness after another, almost all of them prison inmates, describe how Lyons had sold them packages of cocaine. One said that Lyons, who ran clothing shops and nightclubs around Orlando, even tried to hire him to kill two drug suppliers. But the federal prosecutors handling the case did not let the jury hear all the facts. Instead, the prosecutors covered up evidence that could have discredited many of Lyons' accusers. They never revealed that a convict who claimed to have purchased hundreds of pounds of cocaine from Lyons struggled even to identify his photograph. And they hid the fact that prosecutors had promised to let others out of prison early in exchange for their cooperation.

Prosecutors have immense power. And their abuse of that power is not just a once-in-a-while transgression. It happens all the time and usually goes unnoticed – how do you see something that’s not there?

Worse, as revealed by the current Innocence Project’s research into prosecutorial misconduct, County and State Bar Associations rarely ask prosecutors to explain what looks distinctly fishy to their fellow lawyers. And the reason is exactly that: Most of the time, it’s the fellow lawyer angle that shuts down the bar associations. It’s go along to get along.

In general, we’re only reminded about prosecutorial misconduct when it triggers a major news story. The most heartless one I know concerns the FBI laboratory, as it used to be. Twenty years ago, as many as 10,000 accused men and women were convicted on the strength of bogus forensic tests and were sentenced to prison terms. The Department of Justice attempted a wholesale cover up and gave correct information only to prosecutors, not defense attorneys.

Thanks to the Washington Post, the DOJ fessed up and promised to review every one of the convictions meted out on the basis of faux “evidence.”

Time – and insistent journalism – will help tell us whether the DOJ is making good on its promise.

As to other promises – cleaning up the forensics racket, for example – there are glimmers of hope. In addition to the DOJ’s investigation of the FBI’s faux “evidence,” proposed legislation has recently been introduced in both House and Senate.

Sen. John D. Rockefeller IV of the Senate Committee on Commerce, Science and Transportation, and Reps. Eddie Bernice Johnson, Donna Edwards and Daniel Lipinski of the House Committee on Science, Space and Technology have introduced bills mandating scientific review and standards for forensic sciences.

The bills are designed to address the wide ranging deficiencies in scientific validation and the lack of oversight of forensic sciences that were highlighted in a 2009 report by the National Academy of Sciences.

Peter Neufeld, Co-Director of the Innocence Project, said, “Today, leaders of the Senate Commerce Committee and the House Science Committee took a giant step forward in ensuring that forensic science is based on strong scientific research and governed by consistent and meaningful standards. For far too long, the forensic science disciplines have suffered from the lack of these components, resulting in practices that hamper law enforcement’s ability to solve crimes and contribute to wrongful convictions.

These bills “are an important component of ensuring that forensic sciences are based on solid, reliable research. We urge Congress to act quickly to enact this legislation and to develop and support mechanisms for the practical implementation of the resulting research and standards.”

About Me

William Fisher has managed economic development programs for the US State Department and the US Agency for International Development in the Middle East, Latin America and elsewhere for the past 25 years. He served in the administration of President John F. Kennedy.